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3.15 pm

Lord Mackay of Clashfern: My Lords, I support this amendment for the reasons that the noble Lord, Lord Pannick, has given. The idea of a prior authorisation is incorporated in the statutes of the security and intelligence services. The authority or precedent of the Protection of Children Act, which the noble Lord previously quoted, refers to an amendment which was introduced into what I think is quite an elderly Act by a children's Act in 2003. This deals only with questions of the possession of pornography and the like for the protection of children. It is a very much simpler issue than the contents of this legislation involve.

Secondly, I want to mention the very considerable intervention at the last stage by the noble and learned Lord, Lord Archer of Sandwell, who is probably more experienced than any of us in this area, certainly from the point of view of seniority. His was a very serious comment on having this simply as a defence. Therefore, in my view, what he said is best met by the kind of amendment that the noble Lord, Lord Pannick, has moved, which greatly improves the drafting of the Bill.

Lord Foulkes of Cumnock: My Lords, speaking as the Lords member of the Intelligence and Security Committee-I have now also been nominated for the Joint National Security Committee which is to be set up between the two Houses-I am in a very privileged position, as all noble Lords here are aware. We are privy to a great deal of information regarding the operations of the security services. I can therefore speak with the knowledge but, unfortunately, without being able to go into too much detail.

When I read the proceedings in Committee, I was appalled at the suggestion that Clause 12 should be deleted. As I understand it, we are not now considering that, which I am very pleased about. However, the alternative that has been put forward by the noble Lords, Lord Pannick and Lord Goodlad, is also unacceptable for a number of reasons.

My understanding is that the first Joint Committee on this corruption Bill ruled out the question of authorisation for a number of reasons. No doubt my noble friend Lady Whitaker and others can confirm that. The most important reason for ruling it out is how impractical it would be. The volume of authorisations would be enormous. I know that some Members who have been Ministers, or Home, Defence or Foreign Secretaries, will understand the huge volume that there would be in relation to authorisation where agents, as part of their duty, have to make payments to contacts to get information which can be vital for national security, the prevention of terrorism and a whole

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range of other things that are in the national interest. There would be hundreds and thousands of pre-authorisations on a regular basis.

The Home Secretary and other Secretaries of State already have to deal with authorisations for interception, wire-tapping and a whole range of other things which provide an enormous burden on them. This would be an added burden that is quite unnecessary and intrusive. It is being suggested by lawyers. I think that everyone who has spoken for it, both in Committee and outside it, have been lawyers. Lawyers are generally like MPs and other politicians. When I was an MP, I found that people like you individually but they are not very fond of you collectively. In my constituency I had a lot of support, but collectively we were not very popular. I like lawyers as individuals. I like no one better than the noble and learned Lord, Lord Mackay, who I have known for many years. However, I get a bit worried when they gather together as a herd and push something. The wisdom of this amendment must be questioned-I hope that the House will question it-as it is an unfair, undue and, above all, unnecessary burden to put on Secretaries of State when the system has been operating quite properly and effectively up until now.

Lord Mackay of Clashfern: Before the noble Lord sits down, has he any comment to make on the intervention of the noble and learned Lord, Lord Archer of Sandwell, at the previous stage?

Lord Foulkes of Cumnock: I fully respect my noble and learned friend, who served on the Intelligence and Security Committee with great distinction for a long period. However, I understand that my colleagues on the present committee, who come from all parties, feel the same as I do.

Lord Goodlad: My Lords, I support the noble Lord, Lord Pannick, in his exposition of the reasons why the amendment in our names should commend itself to the House. I want to make three brief points. First, I express the gratitude of members of your Lordships' Select Committee on the Constitution to the noble Lord, Lord Bach, and his ministerial colleagues for their unfailing courtesy in briefing us on the Bill's potential consequences. Secondly, it has been said to me-my noble and learned friend Lord Mackay of Clashfern referred to this-that there is already statutory provision for prior ministerial authorisation of bribery on the part of the armed services and the security services. It has also been said that this is impractical. Both propositions cannot possibly be true. Therefore, the Minister will no doubt wish to say whether there is already statutory provision, as my noble and learned friend says, in which case it ought, clearly, to be in the Bill, or whether prior authorisation is impractical.

Many government transactions require ministerial authority. One thinks of the millions of transactions involved in social security. We are not here envisaging a very large number of transactions-quite a lot, but not an enormous number. However, the noble Lord, Lord Foulkes, with whom I agree on a surprising number of things, failed to point out that not every transaction falls within the provisions of the Bill.

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Class authorisations are available to the Secretary of State. It is up to him to decide. Therefore, it is not a matter of authorising hundreds of thousands of transactions; it can, if he or she so judges, be a class action.

My final point has not been previously deployed. If we are to ask people in our armed services and the security services to continue to engage in acts of bribery on behalf of the state, we must do so because there is no alternative, and we must protect them in other jurisdictions where they may well be prosecuted. We do not know, nor can we know, what other jurisdictions say or are going to say. If they are grabbed in another country and prosecuted, we must give them the protection of being able to say that they have the authorisation of the Government. Therefore, I wholeheartedly endorse what the noble Lord, Lord Pannick, has said. I very much hope that the Minister, with his unfailing courtesy, will address these points.

Baroness Whitaker: My Lords, as not only a non-lawyer but a non-expert, I always thought that the idea of authorisation was unwise. It is very permissive and very broad. Not only do I defer to my noble friend Lord Foulkes's expertise on practicality; if one steps back a bit from the amendments and returns to the Bill as drafted, the result of Clause 13 as now drafted is that there will not be prosecutions by the prosecuting authority unless there is a doubt about the legality of an act by the security services or the Army. It seems to me that that is the right balance.

Lord Thomas of Gresford: My Lords, I think the point that we are all trying to cover is the protection of the security services and the Armed Forces in offering favours or money in order to obtain information or whatever it is that is necessary for them to carry out their role.

Four ways have been discussed in the proceedings on the Bill. The Government's approach is to have a statutory defence open to members of those services, which is what we see in Clause 12 or Clause 13. Another way would be prior authorisation, which the amendment argues for. A third way, which I have previously argued for, is to allow prosecutorial discretion. The director of the Serious Fraud Office or the Director of Public Prosecutions would have ample discretion to prevent prosecutions of members of their services if it was in the public interest not to prosecute them. I set out a fourth way in my amendment to Clause 1, which is simply to make it not an offence for a member of those services to do those very acts. To my mind, that is a simple, straightforward way of dealing with it, and my first and second amendments were merely redrafting the Government's provisions to make what I regarded as a far more practical way of dealing with the object that we all have in mind.

I heard the criticism by the noble Lord, Lord Foulkes, of lawyers, and I am not surprised about that. Even he will concede that he does not know-many people do not know-precisely how the courts work in practice. You need to have considerable experience to appreciate that a reverse burden of proof is not a very satisfactory way of proceeding. Indeed, reverse burdens of proof

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have made a lot of people in the legal profession a lot of money over the years, not only in this country but in Strasbourg. I recall in particular the case of the Attorney-General of Hong Kong v Lee Kwong-kut, which was before the Privy Council here and was concerned with the interpretation of the bill of rights in Hong Kong. I was for one of the parties in that case, and the noble and learned Lord, Lord Woolf, gave the lead judgment, in which he pointed out that putting the legal burden on the defendant is right when, among other instances, the defence depends on facts within the defendant's own knowledge. For example, in Clause 7, there is a statutory defence for a company to prove that it,

Why is that satisfactory? Because it is within the company's own knowledge as to what adequate procedures it has and what it can advance.

My criticism of Clause 13 as it now stands, and the reason why I opposed it and wish to strike it out, was that a person who is in the security services or the Armed Forces cannot possibly have access to the evidence which would be required for him to support such a defence. He would not, as I said on the last occasion, be able to walk into the offices of MI5 and demand to see the papers on which his defence would depend. If he was in the armed services, he would have great difficulty in bringing witnesses from the far reaches of the earth, where the British forces may happen to be and where the offence might have been committed, and obtaining papers the release of which would probably be resisted by the Ministry of Defence. It is impractical.

I still share the same object as others. I am disappointed that what I regarded as a redrafting has seemed to the usual channels to be in breach of the Third Reading amendments principle. There it is: the Government have tied themselves to the worst of the four courses I put forward. For that reason, we on these Benches will support pre-authorisation, which is a better solution for the particular problem.

3.30 pm

Lord Woolf: My Lords, I hope I will be forgiven if I deal with the present amendment at the same time as Amendment 6, to which I have placed my name and which has the support of the same noble Lords as support this one. I repeat the disclosure I made on Report as to my interest.

I start by explaining why I consider that this provision and the issues we are discussing are of considerable importance. As I understand it, the defence made available in Clause 13 has the effect of the state acknowledging that there will be circumstances where members of the security services, intelligences services and Armed Forces will, in the course of their duties on behalf of the state, commit acts of bribery. This House would agree that there could be circumstances where that is right and proper but this is a significant power to give to the security and other services: the power to bribe without any form of parliamentary scrutiny or other form of prior authorisation.

We have certain experience in this field. Three Acts deal with the security services and intelligence services

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and work reasonably well. They require a warrant to authorise acts which would otherwise be unlawful. The systems provided for are the subject of a form of review and scrutiny by an independent person who is normally a retired senior judge. That is done, for example, in relation to telephone tapping. One can see why it is absolutely necessary, even though the situations where telephone tapping has to take place are substantial. I have difficulty understanding why, if it is practical in relation to telephone tapping or the searching of premises, something cannot also be done in this connection. It is important that, whereas the security services and intelligence services now have well-developed methods of keeping appropriate records so that they can be inspected, there is no legislation of which I am aware-I know I will be corrected if I am wrong-dealing with the Armed Forces, who are going to have this power to bribe on behalf of the state.

It is self-evident that if a new power to bribe is being given by this legislation to the Armed Forces, that could properly be said to be necessary in particular circumstances. We do not say otherwise; but it does need safeguards. One way of providing them, particularly in relation to the officers of the various services to which I have referred, was suggested by the amendment referred to by the noble Lord, Lord Pannick. It creates an improvement. However, in drafting Amendment 6, on which I am primarily addressing your Lordships, I listened to what was said by the noble Lord, Lord Bach-I endorse the remarks made by the noble Lord, Lord Goodlad, about the Minister's courtesy-and treated it with the seriousness that it obviously deserved. I sought to find a way in which there could be a form of supervision, admittedly not ideal, that would provide protection in regard to both matters to which I have referred; first, the need for there to be a system in place to indicate the scale of bribery that is occurring, and the circumstances in which it is occurring; and secondly, to provide a flexibility that would not and could not interfere with the security services in the way indicated by the noble Lord, Lord Foulkes.

Lord Foulkes of Cumnock: I thank the noble and learned Lord and assure him that the Intelligence and Security Committee has the power not just to examine the accounts of three services, but to ask detailed questions about them. In my experience over the past three years, the three services have given detailed information along the lines that the noble and learned Lord is suggesting. There is scrutiny by a committee of Members of both Houses of Parliament of the accounts generally and of the details of those accounts.

Lord Woolf: I am grateful to the noble Lord, Lord Foulkes, for indicating that, but my understanding of the situation is that, in regard to bribery, the act of scrutiny does not take place now. Obviously it should do. I do not know whether the noble Lord, Lord Foulkes, has knowledge of whether there is any form of scrutiny at the present time. Certainly, if there is a form of scrutiny, that is beneficial. However, the form of scrutiny that my amendment, supported by other noble Lords, recommends to the House is one that will end up in an annual report to the House. When it comes to bribery on behalf of the state, the rule of law

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requires no less than that there should at least be regular reports to the House about what is happening on the state's behalf in relation to bribery. Resorting to bribery is a very corrosive exercise, and if it is going to be resorted to, we need care and protection of the sort that I have indicated.

I ask the noble Lord, Lord Bach, if he does not feel that he can accept the amendment, to tell the House why it is not practical from the point of view of the services to which it refers. It requires the Secretary of State to determine what guidance should be given on the nature of the scrutiny. The Secretary of State can certainly consult and be guided by the services in drawing up the guidance. It does require, however, that the guidance should in its turn require that a record, so far as is practicable without impeding the proper exercise of the functions referred to in Clause 13, be made before the act of bribery is carried out; to state when and by whom it was carried out and to give such particulars as are sufficient to identify the act of bribery. I should like to endorse what the noble Lord, Lord Thomas of Gresford, has said about the difficulty of the person who is to be the subject of an offence. The new clause gives that person the right to make a request and to receive a copy of the record which relates to him,

thus taking advantage of the well known procedure of the trial judge being put in the position of having to safeguard the public interest.

I provided the noble Lord, Lord Bach, with a copy of the amendment. I am sorry that he has not had the time to consider it but I would like him to have done so because of the timescale to which we have been working. I suggest, however, that it was difficult to see why this is not a method of providing some realistic protection both to the state and to those who have to engage in the nefarious world where bribery is required to be carried out in circumstances where no offence will be committed.

The Earl of Onslow: My Lords, apart from the fact that the four people who have put their names to this amendment could be described in modern terms as some of the most grown up in the House, I should like to draw a small point to your Lordships' attention. As your Lordships know, there is an expression which says you cannot buy an Afghan, you can only rent him. As far as I can gather from reading the newspapers, British and American policy is to rent Afghans on a large scale. Surely, that is the sort of policy which needs even more serious oversight and consequently I seriously support the four great grown-ups who have put their names to this amendment.

Lord Lyell of Markyate: My Lords, I should like very succinctly to support these amendments and the points that have been made. I start by endorsing the point of my noble friend Lord Goodlad that the noble Lord, Lord Bach, has always been unfailingly courteous. I am sure he will give this careful consideration and we shall listen most carefully to what he has to say.

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The dangers and corrosive effects of bribery have been perfectly put by the noble and learned Lord, Lord Woolf. It seems to me that there has to be some system of supervision and control by the Secretary of State and that there is an enormously strong case for the officers, whether of the Armed Forces or the security services, having the benefit of an authorisation procedure which will give them confidence that what they do will not lead to prosecution. There is a great deal of sense in the proposals that the Government should issue guidance. They will issue guidance in a great many areas, whether or not they are leaving matters to the discretion of the prosecuting authorities.

The principal argument that seems to be made against these proposals is that there are so many authorisations that it is not practicable to give them. They can, however, be broken down into classes. The fact that you have to break some down into classes and the fact that some have to done at very short notice and under some general instruction is no argument, in my view, against a system of control. The system of control may not be perfect because a perfect system would completely upset the practical needs of the services. However, that is not an argument for no system of control. Indeed, the committee on which the noble Lord, Lord Foulkes, sits-he has great knowledge in this matter-calls for and receives a great many detailed records, and I cannot believe other than that careful records are kept of bribes that are made in all these circumstances and of the amounts that are spent.

3.45 pm

Lord Foulkes of Cumnock: Not only do we examine the accounts very carefully and ask a lot of questions, but now, under this Government, we also provide an annual report both to the House of Commons and to this House that is debated. I introduced it in the Grand Committee in the Moses Room just a few months ago, and another one is coming up. That provides an opportunity for individual Members of the House to ask questions. On the previous occasion, no one asked about bribery.

Lord Lyell of Markyate: The noble Lord's remarks are pertinent, but I am sure he will instantly recognise that they cut both ways. If the necessary records are to some extent already being kept, it is not asking too much for the records that are required by the amendments to be kept. We as a country will hold our heads higher for being seen to have a system of control, even given what I entirely accept are the practical needs of the armed and security services to bribe, often on many occasions. Having supervision and control would raise our status, which is quite rightly very much part of the Government's objective in the Bill. Keeping these records would not be an excessive requirement, because most of them are already kept. I very much hope that the Government will respond favourably to the thrust of the amendments and will put into place some such system, if not precisely this one.

Viscount Colville of Culross: My Lords, I have an amendment in this group that deals with the matter in the opposite way from the Government. I hope that there will be an answer to the point, to which the noble

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and learned Lord, Lord Mackay, has already adverted and which the noble and learned Lord, Lord Archer of Sandwell, and the noble Lord, Lord Thomas of Gresford, rehearsed on Report, about how the defence will work.

There are various methods of dealing with the problem about which everyone has been talking and obviously understands very well. The Government have decided on the method of a defence which the House has been told by people who are much more eminent in the criminal law than I am simply will not work, because the material will not be available to the defendant-or to the court, let alone to the jury-for him to establish the defence on which the Government are dependent. The noble Lord, Lord Bach, has therefore had notice of this, and I hope that he will explain exactly how it is intended to work. It will be no defence if the result is either that the case cannot be prosecuted because such sensitive material is involved that it cannot be presented to a court, or that it cannot be defended because the defendant has no access to exactly that sensitive material and therefore cannot establish the defence that he has been given by the statute. This was the concern that moved me, so I reversed the whole thing in my amendment and put the burden on the prosecution instead. I hope that the noble Lord will deal with this point.

Baroness Hanham: My Lords, at this very late stage of the Bill, I hope that the House will forgive me if I intervene on behalf of my noble friend Lord Henley. Indeed, it is appropriate that the shadow spokesman on transport is standing in his place because he is stuck in a broken-down train. I will say what I believe he might have said had he been here to say it.

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